Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Diego County Super. Ct. No. SF92812
McDONALD, Acting P. J.
Petition for writ of habeas corpus after Board of Parole Hearings (formerly Board of Prison Terms) found petitioner unsuitable for parole. Relief granted.
In 1995 petitioner Abraham Abraham pleaded guilty to a charge of kidnapping for ransom and was sentenced to life in prison with a possibility of parole. Abraham, now 46 years old, has remained in prison for the past 12 years and appears to have been an exemplary prisoner. Nevertheless, the Board of Parole Hearings (BPH) found him unsuitable for parole at hearings conducted in 2001, in 2003, and finally in 2006. The most recent denial, challenged by this petition for writ of habeas corpus, was based on the BPH's conclusion that Abraham was not suitable for parole because he posed an unreasonable risk of danger to public safety were he released from prison, even though evaluations have concluded his risk of danger to the public, were he paroled, is no greater than the risks posed by an average unincarcerated citizen.
Abraham asserts the BPH's conclusion has no evidentiary support, and therefore violates his due process right to parole. He argues its conclusion was improperly based solely on the circumstances of his offense and there is no evidence he currently poses a risk of danger to public safety.
Abraham raises two other contentions. First, he argues that repeated denial of his parole applications violates the plea bargain agreement that produced his guilty plea, because it converts his bargained-for sentence--life with the possibility of parole--into life without the possibility of parole. He also appears to contend the BPH is not complying with the statutory mandate of Penal Code section 3041, subdivisions (a) and (b), which requires the BPH "shall normally" grant parole because the BPH's normal practice is to deny parole. Our disposition makes it unnecessary to reach these contentions.
I
FACTS
A. The Offense
In 1995 Abraham pleaded guilty to kidnapping for ransom and was sentenced to life with the possibility of parole for his accomplice role in the kidnapping of the victim, Richard Molina. Viewed most favorably to the BPH's ruling, the facts of the offense (derived from the probation officer's report and Abraham's statements) are as follows.
On January 27, 1995, Alex (Abraham's brother) was trying to recover approximately 40 pounds of marijuana Alex had given to Daniel (the brother of Molina's girlfriend) to sell. Around 10:00 a.m., Alex went to Molina's apartment, persuaded Molina to come outside, displayed a knife and threatened to kill Molina if Alex did not get either the money or the marijuana. Alex also threatened to kill Molina's family, one by one, if Alex did not receive the money or marijuana.
Alex forced Molina into a car and drove to Alex's mother's house, where he picked up Abraham. The three men then went to Abraham's house. Alex bound Molina hand and foot with duct tape, struck him on the head with a knife and threatened him with death. Alex then telephoned several of Molina's relatives to negotiate the return of the marijuana, and repeated his threats to kill Molina and members of Molina's family if they did not meet Alex's demand.
Daniel agreed to return the marijuana to Alex. Alex left Abraham in charge of Molina while Alex went to Daniel's apartment to collect a box containing the marijuana. Daniel returned all but 10 pounds of the marijuana. Alex thereafter took Abraham and Molina, along with the marijuana and a shotgun, to Alex's house.
At approximately 3:00 a.m., 15 hours after first abducting Molina, Alex told Molina's family he was tired of negotiating and would contact them the next morning. Abraham and Alex then tied Molina's hands and feet with ropes, and secured one end of the rope to a bed and the other end to Abraham. Molina was placed on the floor next to a bed on which Abraham rested, while Alex went to the other bedroom. Approximately one hour later, a police tactical team broke into the residence through a barricaded door. They found Abraham next to Molina in the bedroom. Molina's hands were severely swollen, his eyes were bruised, and he had numerous lacerations on his head. Police found substantial quantities of marijuana and paraphernalia and other items suggesting the drugs were held for sale.
B. Abraham's Criminal Background
Abraham had no prior history of violence. His prior offenses were limited to driving without a license or insurance and not appearing at court dates for those offenses.
C. Abraham's Performance in Prison
Abraham's record during his incarceration was impeccable. He has been discipline free during his entire term, notwithstanding the racial tensions at the prison where he was housed and the attendant pressures to affiliate with members of his own ethnic group. He participated in an AA program, apparently has a low "classification score" for a life term inmate, and had nearly completed a vocational training program when he was transferred for reasons beyond his control. He converted to Christianity shortly after he was incarcerated, and has attended Bible studies on a regular basis since that time.
HISTORY OF PROCEEDINGS
A. The 2001 and 2003 BPH Proceedings
Abraham was first considered for a parole date in September 2001. At this first parole hearing, the psychological assessment concluded Abraham's potential for violence was "no more than the average citizen." However, the BPH denied parole, apparently because of an unsuitability determination based on (1) the facts of the offense and (2) Abraham did not appear to have viable vocational plans in Mexico because he had participated in but not yet completed any vocational training. The BPH recommended he remain discipline free, complete his vocational training, and continue to participate in self-help and therapy programs.
At Abraham's second parole hearing in 2003, the BPH noted he had remained discipline free and had participated in an AA group, received positive commendations for his prison work, and obtained his GED. Abraham's psychological assessment and parole plans remained adequate. However, the BPH again denied parole because of an unsuitability determination, based primarily on (1) the facts of the offense and (2) Abraham's failure to complete any vocational training programs to develop marketable skills.
B. The Present Proceeding
The 2006 Parole Hearing
The present parole hearing was conducted in 2006. Abraham's psychological assessment from the prior hearings remained unchanged. The 2006 evaluation by the prison psychologists, prepared for the parole hearing, concluded Abraham had feasible and appropriate plans for work and a residence were he granted parole. The report, noting Abraham had excellent academic skills in both English and Spanish, explained he had developed good office service skills through vocational training and planned to obtain work in office services on his release. It noted Abraham was subject to an immigration "hold," which he planned to honor, and had residence and employment arranged in Mexico if released.
Assessing Abraham's risk for violence if paroled, the psychologists stated he was a nonaggressive person, there was no suggestion of any antisocial thinking or values or evidence of any personality disorder, and the crime was "markedly out of character" for him. The report, noting Abraham had remained discipline free during his incarceration, agreed with the prior evaluations that his potential for violence was "no more than the average citizen." The 2006 report buttressed its conclusion by reliance on another evaluative tool (the "Level of Service Inventory-Revised") that gave Abraham a score of .02. The evaluator explained Abraham "is an extremely low risk level. He does not pose any sort of risk to society. This means that if 100 men were released on parole, he would do better on parole than 99 of them."
Abraham's ability to remain discipline free was characterized by the report as "commendable [because] [a]t this institution there are frequent racial riots and confrontations. It is very difficult to remain independent from these confrontations without incurring anger from your own racial group. The fact that he has remained [discipline] free in a hostile, tense environment, which has frequent confrontations between inmates, is certainly commendable. This demonstrates that he has excellent judgment and self-control, and he knows how to act in a responsible manner."
The BPH nevertheless concluded Abraham was not suitable for parole because he posed "an unreasonable risk of danger to society or a threat to public safety if released from prison." The BPH cited only the circumstances of the crime to support its conclusion he posed an unreasonable risk to society. The BPH found the commitment offense was "particularly violent" and was "callous" because, although he did not beat or stab the victim or threaten the victim's family members, Abraham nevertheless was a participant and did nothing to stop it.
The Habeas Proceedings
Abraham petitioned the San Diego County Superior Court for a writ of habeas corpus alleging the BPH violated his due process rights because its unsuitability determination was not supported by the evidence and was therefore arbitrary and capricious. The court denied the writ, concluding the BPH's decision was supported by some evidence.
Abraham then petitioned this court for a writ of habeas corpus. We issued an order to show cause and the People filed a return. Abraham's petition asserts the BPH's decision to deny parole because of its conclusion that he posed an unreasonable risk of danger violated due process because it was (1) contrary to the only reliable evidence of his current dangerousness and (2) relied on findings unsupported by any evidence.
III
LEGAL FRAMEWORK
A. Parole Suitability
Penal Code section 3041 provides the parole framework for indeterminate life inmates. Subdivision (a) requires that, one year prior to the inmate's minimum release date, the BPH meet with the inmate and "normally set a parole release date" according to specified criteria. However, subdivision (b) provides that if the BPH determines the inmate is not suitable for parole because "consideration of the public safety requires a more lengthy period of incarceration," it need not set a release date. (In re Dannenberg (2005) 34 Cal.4th 1061, 1078-1080 (Dannenberg).)
In making the Penal Code section 3041, subdivision (b), suitability determination, the BPH is charged with considering "[a]ll relevant, reliable information" (Cal. Code Regs., tit. 15, § 2402, subd. (b); hereafter, reference to section 2402 refers to the regulations), including the nature of the commitment offense and behavior before, during, and after the crime; the prisoner's social history; mental state; criminal record; attitude toward the crime; and parole plans. (§ 2402, subds. (b), (d).) The circumstances that tend to show unsuitability for parole include that the inmate: (1) committed the offense in a particularly heinous, atrocious, or cruel manner; (2) possesses a previous record of violence; (3) has an unstable social history; (4) has previously sexually assaulted another individual in a sadistic manner; (5) has a lengthy history of severe mental problems related to the offense; and (6) has engaged in serious misconduct while in prison. (§ 2402, subd. (c).) A factor that alone might not establish unsuitability for parole may still contribute to a finding of unsuitability. (Id. at subd. (b).)
Factors that support the finding that the crime was committed "in an especially heinous, atrocious or cruel manner" (§ 2402, subd. (c)(1)), include the following: "(A) Multiple victims were attacked, injured or killed in the same or separate incidents[;] [¶] (B) The offense was carried out in a dispassionate and calculated manner, such as an execution-style murder[;] [¶] (C) The victim was abused, defiled or mutilated during or after the offense[;] [¶] (D) The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering[;] [and] [¶] (E) The motive for the crime is inexplicable or very trivial in relation to the offense."
Circumstances tending to show suitability for parole include that the inmate: (1) does not possess a record of violent crime committed while a juvenile; (2) has a stable social history; (3) has shown signs of remorse; (4) committed the crime as the result of significant stress in his life, especially if the stress had built over a long period of time; (5) committed the criminal offense as a result of battered woman syndrome; (6) lacks any significant history of violent crime; (7) is of an age that reduces the probability of recidivism; (8) has made realistic plans for release or has developed marketable skills that can be put to use on release; and (9) has engaged in institutional activities that evidence an enhanced ability to function within the law on release. (§ 2402, subd. (d).)
These criteria are "general guidelines," illustrative rather than exclusive, and "the importance attached to [any] circumstance [or combination of circumstances in a particular case] is left to the judgment of the [BPH]." (In re Rosenkrantz (2002) 29 Cal.4th 616, 679 (Rosenkrantz); § 2402, subds. (c) & (d).) The BPH's task is to try "to predict by subjective analysis whether the inmate will be able to live in society without committing additional antisocial acts." (Rosenkrantz, at p. 655.)
B. Standard of Review
The court below denied relief, and therefore this writ proceeding is an original proceeding that requires we independently review the record. (In re Scott (2004) 119 Cal.App.4th 871, 884 (Scott).)
In Rosenkrantz, the California Supreme Court addressed the standard for a court to apply when reviewing a parole decision by the executive branch. The court first held that "the judicial branch is authorized to review the factual basis of a decision of the [BPH] denying parole in order to ensure that the decision comports with the requirements of due process of law, but that in conducting such a review, the court may inquire only whether some evidence in the record before the [BPH] supports the decision to deny parole, based upon the factors specified by statute and regulation." (Rosenkrantz, supra, 29 Cal.4th at p. 658.)
The "some evidence" standard is "extremely deferential" and requires "[o]nly a modicum of evidence." (Rosenkrantz, supra, 29 Cal.4th at pp. 665, 677.) A court may not vacate an administrative decision subject to the "some evidence" review simply because it disagrees with the BPH's assessment. (Id. at p. 679.) The decision must be "devoid of a factual basis" to be overturned. (Id. at p. 658.) Because judicial review of a parole denial is to ensure that a decision of the BPH is not arbitrary and capricious, thereby depriving the prisoner of due process of law, "the court may inquire only whether some evidence in the record before the [BPH] supports the decision to deny parole, based upon the factors specified by statute and regulation." (Id. at pp. 657-658.)
The BPH's discretion over parole suitability determinations, although broad, is not absolute. (Scott, supra, 119 Cal.App.4th at p. 884.) Rosenkrantz explained "that the judicial branch is authorized to review the factual basis of a decision of the [BPH] denying parole in order to ensure that the decision comports with the requirements of due process of law. . . . If the decision's consideration of the specified factors is not supported by some evidence in the record and thus is devoid of a factual basis, the court should grant the prisoner's petition for writ of habeas corpus and should order the [BPH] to vacate its decision denying parole and thereafter to proceed in accordance with due process of law." (Rosenkrantz, supra, 29 Cal.4th at p. 658.)
IV
ANALYSIS
The People do not dispute that the only evidence on all relevant parole suitability factors, as well as the only evidence on most of the unsuitability factors, militated in favor of finding Abraham suitable for parole. Notwithstanding this evidentiary milieu, the BPH found Abraham was unsuitable because it concluded the commitment crime itself showed he remained a danger to society if released on parole. Because we are charged with the obligation to ensure the BPH's decision comports with the requirements of due process of law, and can discharge that obligation only if we are satisfied there is some evidence in the record before the BPH to support the factual basis for its findings (Rosenkrantz, supra, 29 Cal.4th at p. 658; In re Dannenberg, supra, 34 Cal.4th at p. 1095 and fn. 16), we examine the articulated basis to determine if some evidence supports the BPH's decision.
A. The Commitment Offense
The BPH concluded Abraham continued to pose an unreasonable risk of danger if released on parole because the offense "was a particularly violent offense [and] was callous," apparently invoking section 2402, subdivision (c)(1)(D).
Under section 2402, subdivision (c)(1)(D), a conclusion of "especially heinous, atrocious or cruel" can be premised on a finding that the defendant acted in a manner showing "an exceptionally callous disregard for human suffering." We recognize that section 2402, subdivision (c)(1) also lists, as factors that can support the finding the prisoner acted "in an especially heinous, atrocious or cruel manner," multiple victims were involved; the offense was carried out in a dispassionate and calculated manner; the victim was abused, defiled, or mutilated during or after the offense; or the motive for the crime was inexplicable or very trivial in relation to the offense. However, the BPH did not cite these factors, and the People do not suggest there is evidence supportive of these other enumerated factors; accordingly, we do not further consider them.
Section 2402, subdivision (c)(1) describes many factors that, if present, support a finding that "[t]he prisoner committed the offense in an especially heinous, atrocious or cruel manner." (Italics added.) Under Rosenkrantz, the BPH cannot rely on the bare conviction of kidnapping for ransom to deny parole under the exceptionally callous or cruel factor; there must be some evidence Abraham engaged in conduct, apart from and beyond the minimum necessary to convict him of the offense (Dannenburg, supra, 34 Cal.4th at p. 1098), that was "especially heinous, atrocious or cruel" to the victim.
Rosenkrantz, explaining why the nature of the offense must "involve particularly egregious acts beyond the minimum necessary to sustain a conviction for second degree murder," stated that, "In some circumstances, a denial of parole based upon the nature of the offense alone might rise to the level of a due process violation--for example where no circumstances of the offense reasonably could be considered more aggravated or violent than the minimum necessary to sustain a conviction for that offense. Denial of parole under these circumstances would be inconsistent with the statutory requirement that a parole date normally shall be set 'in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public. . . .' [Citation.] 'The [BPH's] authority to make an exception [to the requirement of setting a parole date] based on the gravity of a life term inmate's current or past offenses should not operate so as to swallow the rule that parole is 'normally' to be granted. . . . [¶] Therefore, a life term offense or any other offenses underlying an indeterminate sentence must be particularly egregious to justify the denial of a parole date.' [Quoting In re Ramirez (2001) 94 Cal.App.4th 549, 570.]" (Rosenkrantz, supra, 29 Cal.4th at p. 683, italics added.)
The BPH's reference to the evidence supporting its finding did not focus on Abraham's conduct, but instead primarily recited the particulars of Alex's conduct insofar as the victim was beaten and stabbed and was threatened with death, and the victim's family was threatened with death. Insofar as the BPH did refer to the manner in which Abraham acted when he "committed the offense" (§ 2402, subd. (c)(1)), it found only that Abraham participated in restraining the victim for the period of the kidnapping, and did not "do anything at all to stop this conduct [by Alex] from going on." Although Abraham's actions sufficed to render him legally responsible as an aider and abettor of kidnapping for ransom, his personal conduct (as distinguished from the conduct of Alex imputed to Abraham under accomplice principles) appears to be the minimum necessary to convict him of the offense (Dannenburg, supra, 34 Cal.4th at p. 1098), and involved no additional conduct beyond the minimum on which the BPH could have found Abraham acted in a particularly cruel or callous manner.
The record appears to contain no evidence that Abraham beat, stabbed, or issued death threats to the victim or the victim's family.
Although a prisoner is not guaranteed the benefits of having his or her term fixed at less than the maximum or to receive parole, due process protections do " 'entitle[] [the prisoner] to have his application for these benefits "duly considered" ' based upon an individualized consideration of all relevant factors." (Rosenkrantz, supra, 29 Cal.4th at p. 655 (italics added); accord, In re Tripp (2007) 150 Cal.App.4th 306, 319.) We conclude (as has at least one other court, see In re Montgomery (2007) 156 Cal.App.4th 930) that although the law will hold a defendant legally liable as an accomplice for a crime when he or she is deemed responsible for the principal's actions, it is inconsistent with that defendant's subsequent right to individualized consideration of the relevant factors bearing on whether he or she poses a risk to society if the BPH merely imputes the principal's conduct to the accomplice to find the accomplice poses a continuing danger if released. (Cf., Dannenburg, supra, 34 Cal.4th at pp. 1083, 1085 [the statutory scheme shows "the suitability determination should focus upon the public safety risk posed by 'this individual' " and ensures the BPH addresses "the public safety implications of releasing each individual life-maximum inmate on parole"].) We interpret the statutory scheme to require the BPH to focus on the prisoner's conduct during the commitment offense to determine whether the prisoner poses a continuing danger if released.
Our reading of section 2402 reinforces our conclusion that the focus is directed to the prisoner's personal dangerousness. In listing the various unsuitability factors, the BPH must consider whether "[t]he prisoner committed the offense in an especially heinous, atrocious or cruel manner," "[t]he prisoner on previous occasions inflicted or attempted to inflict serious injury on a victim," "[t]he prisoner has a history of unstable or tumultuous relationships with others," "[t]he prisoner has previously sexually assaulted another in a manner calculated to inflict unusual pain," "[t]he prisoner has a lengthy history of severe mental problems," or "[t]he prisoner has engaged in serious misconduct in prison or jail." (§ 2402, subds. (c)(1)-(c)(6), italics added.)
There is some recent language from In re Bettencourt (2007) 156 Cal.App.4th 780, 800-801 inconsistent with our interpretation that the BPH may not rely on the principal's conduct during the underlying offense to determine the accomplice prisoner's current dangerousness. However, Bettencourt's discussion of imputing the principal's acts to the prisoner to find some evidence of an especially egregious commitment offense is largely dicta. Moreover, to the extent Bettencourt allowed the BPH to assess the prisoner's current dangerousness by reference to his erstwhile principal's conduct, it did so based merely on citation to the general policy for imposing derivative liability on an accomplice for his principal's actions without articulating why wholesale importation of derivative liability principles is consonant with the distinct task of assessing parole suitability many years after the accomplice and his principal have parted company.
The court ultimately concluded there was some evidence of unsuitability based on numerous factors unrelated to the manner in which the offense was committed. (Bettencourt, supra, 156 Cal.App.4th at pp. 802-806 [unsuitability supported by some evidence the prisoner had (1) a prior criminal record and a postincarceration criminal offense, (2) an unstable social history of alcohol and drug abuse, (3) a poor prison record with multiple serious disciplinary reports, and (4) a psychological profile suggesting poor control over his aggressiveness].) The court also concluded the prisoner's personal conduct in the manner in which the commitment offense was committed also made the offense egregious because it was committed for a trivial motive (§ 2402, subd. (c)(1)(E)) and the prisoner aided in defiling the murder victim's body (§ 2402, subds. (c)(1)(C)).
We conclude the record is devoid of any evidence of aggravated conduct by Abraham reflecting an exceptionally callous disregard for human suffering. To paraphrase In re Smith (2003) 114 Cal.App.4th 343, 367, there is no evidence Abraham "tormented, terrorized, or injured [his victim] . . . or that he gratuitously increased or unnecessarily prolonged [his] pain and suffering. . . . Was the crime callous? Yes. However, are the facts of the crime some evidence that [Abraham] acted with exceptionally callous disregard for [the victim's] suffering; or do the facts distinguish this crime from other [kidnappings for ransom] as exceptionally callous? No.' [Citation.]"
Because the relevant evidence shows no conduct (beyond the minimum required for conviction of aiding and abetting a kidnapping for ransom) showing a callous disregard for human suffering, the BPH's use of this factor was arbitrary and capricious. (Scott, supra, 119 Cal.App.4th at pp. 891-892.)
B. The Uncited Factors
The People also assert that, although the BPH did not cite two other factors to support its decision, those factors nevertheless show there was some evidence to support the BPH's ultimate conclusion that Abraham posed a danger to society were he released on parole.
First, the People argue that the district attorney's opposition to parole provides some evidence to support the BPH's ultimate conclusion. The BPH must provide the district attorney with notice and the opportunity to be heard on the proposed parole, and must "consider" the district attorney's statements in opposition to parole. (Pen. Code, §§ 3042, subd. (a), 3046, subd. (c).) However, if there is no evidence in the record to support the finding of dangerousness, as required by Rosenkrantz, the fact the district attorney has argued against granting parole will not fill the evidentiary vacuum because "[i]t is axiomatic that argument is not evidence." (People v. Breaux (1991) 1 Cal.4th 281, 313.)
The People also assert the BPH's determination is supported by the evidence that Abraham misled prison officials, apparently sometime in late 1995, by claiming he had a wife and children. However, Abraham did not maintain this artifice at his current parole hearing, but instead forthrightly corrected the record (without being confronted by contrary evidence) at his parole hearing. He also explained at his current parole hearing that his 1995 falsehood had been the product of his fear that he would be placed in a more drastic prison setting and wished to avoid that placement. The BPH did not rely on this ancient misstep to find Abraham unsuitable, and we cannot perceive any basis for concluding that Abraham's efforts to avoid being placed into a more violent milieu is some evidence of a potentially violent character. We therefore reject the People's claim that this falsehood provided some evidence Abraham posed a public safety risk (Dannenburg, supra, 34 Cal.4th at pp. 1083, 1085) if released on parole.
IV
APPROPRIATE DISPOSITION
We are somewhat constrained in our dispositional order because we recognize that wemust not only "refrain from reweighing the evidence, [but] should [also] be reluctant to direct a particular result." (In re Ramirez, supra, 94 Cal.App.4th at p. 572, disapproved on other grounds by Dannenburg, supra, 34 Cal.4th at p. 1100.) Instead, when the BPH's findings are not supported by the required modicum of evidence, relief in response to a petition for a writ of habeas corpus should issue directing the BPH to vacate its decision and thereafter "to proceed in accordance with due process of law." (Rosenkrantz, supra, 29 Cal.4th at p. 658.)
The available disposition differs when the court is reviewing a decision of the Governor reversing the BPH's grant of parole. In that case, the Governor's decision may be vacated, the effect of which is to reinstate the BPH's decision. (In re Lee (2006) 143 Cal.App.4th 1400, 1414-1415.)
We may, however, direct the BPH with respect to the conclusions that must be drawn from certain evidence where its contrary decision was arbitrary and unreasonable. (In re Scott, supra, 119 Cal.App.4th at p. 899 [BPH directed to consider psychological reports as favoring petitioner's application for parole].) Accordingly, albeit with some reluctance, we remand the matter to the BPH with directions to conduct a new hearing as soon as practicable upon the finality of this opinion, to evaluate whether (in accordance with the views expressed in this opinion) the manner in which Abraham personally acted during the commitment offense renders him unsuitable for parole.
V
DISPOSITION
The BPH is ordered to vacate the denial of parole and to conduct a new parole suitability hearing for Abraham, within 30 days of the finality of this opinion, and to issue a new decision within 45 days of the finality of this opinion. The BPH shall evaluate whether, consistent with this opinion, the manner in which Abraham personally acted during the commitment offense renders him unsuitable for parole. The BPH may also consider any evidence on Abraham's suitability for parole new or different from the evidence presented at the 2006 hearing.
I CONCUR:
McINTYRE, J.
O'ROURKE, J., Dissenting.
I respectfully dissent. While the majority correctly summarizes the relevant standard of review, I cannot agree with its conclusion that the decision of the Board of Parole Hearings (Board) – in particular, the Board's finding that Abraham's offense was particularly violent and callous – is without evidentiary support. The majority reasons that because Abraham acted only to restrain Molina, he personally did not act in any particularly cruel or callous manner beyond the minimum conduct necessary to convict him of the offense, and the Board cannot look to Alex's actions to determine whether Abraham poses a continuing danger if released. (Maj. opn., ante, at pp. 12-15.)
"The nature of [Abraham's] offense, alone, can constitute a sufficient basis for denying parole." (In re Rosenkrantz (2002) 29 Cal.4th 616, 682 (Rosenkrantz).) Abraham's participation in the offense was not insignificant. It included supplying his own home to conceal Molina's whereabouts, standing by while Alex bound and struck Molina with a knife and issued his death threat, guarding Molina while Alex went to retrieve the marijuana, and assisting Alex in tying Molina's hands and feet with ropes. As the majority acknowledges, Molina was found with severely swollen hands, bruised eyes and numerous head lacerations. Abraham's personal conduct in my view is more aggravated than the minimum necessary to convict him of the offenses (Rosenkrantz, at p. 655; In re Dannenberg (2005) 34 Cal.4th 1061, 1098 (Dannenberg)), and by itself it reflects "exceptional callousness and cruelty" to Molina. (Dannenberg, at p. 1098.) This constitutes "some evidence" to support the Board's unsuitability determination under the limited and extremely deferential review standard. (Rosenkrantz, at pp. 652, 665, 677; Dannenberg, at p. 1084.)
I would further conclude that because as an accomplice Abraham is equally culpable for Alex's acts as if he had committed them himself (Pen. Code, § 31; People v. Prettyman (1996) 14 Cal.4th 248, 249; In re Bettencourt (2007) 156 Cal.App.4th 780, 800-801), the egregiousness of those acts constitute some evidence to support the Board's decision. In this regard, while I agree with the majority that due process entitles the inmate to have his application duly considered based on an "individualized consideration of all relevant factors" (Rosenkrantz, supra, 29 Cal.4th at p. 655),I disagree that reliance on legal principles of accomplice liability to impute the principal's actions to the accomplice is inconsistent with that requirement. The statutory scheme requires the Board to focus upon the prisoner's case and crime; as the court in Dannenberg explained, "[T]he first responsibility of the parole authorities is to evaluate the suitability of an individual inmate for safe release, and, in making that assessment, to take into account all pertinent information and input about the particular case from the inmate's victims, the officials familiar with his or her criminal background, and other members of the public who have an interest in the grant or denial of parole to this prisoner." (Dannenberg, supra, 34 Cal.4th at p. 1086, original italics, see also id. at p. 1071 ["[W]e conclude the Board . . . may protect public safety in each discrete case by considering the dangerous implications of a life-maximum prisoner's crime individually"].) In Dannenberg, the high court rejected the Court of Appeal's holding that the Board must engage in a comparative proportionality analysis, i.e., comparing the prisoner's crime against other similar offenses of the same class, for the sort of individualized consideration of the inmate's case and crime that the Board conducted here. (Dannenberg, at pp. 1071, 1076-1077, 1081.) I decline to read Dannenberg to disregard legal principles of accomplice liability when considering the egregiousness of that inmate's offense under the applicable regulations. (Cal. Code Regs., tit. 15, § 2402, subds. (b), (c).)
Because the Board's decision has a factual basis in the record, I would deny Abraham's petition.
O'ROURKE, J.